Employment and Support Allowance – the detailed rules
16 April 2008 (last updated 16 October 2008)

The Headlines

• Introduction date: 27 October 2008.
• Main ESA rules published: The Employment and Support Allowance Regulations 2008, SI 2008 No.794.
  (See http://www.opsi.gov.uk/si/si2008/uksi_20080794_en_1 )
• Existing claimants of incapacity benefit and income support will remain on those benefits for time being; linking rules mean some claimants reclaiming those benefits after 27 October can requalify.
• For new claimants, regarding any claim for a period beginning on or after 27 October, claims for income support where the qualifying condition is that the claimant is incapable of work, is a disabled student, a deaf student or is blind, and all claims for incapacity benefit will be treated as claims for ESA if made after 27 October.
• Amounts will vary, but in initial 13 week assessment phase, basic rate for a single person will be £60.50 a week (£47.95 for people aged 18-24), and thereafter most will be entitled to minimum £84.50 a week; with the most severely disabled (ie in the support group) entitled to a minimum £102.10 a week.
• Many contributory ESA rules are basically similar to incapacity benefit (including national insurance contribution conditions); many income-related ESA rules are basically similar to income support (eg, right to reside test applies), though there are some differences (eg, on disabled students, where only those in receipt of DLA will be able to qualify for income-related ESA).
• New ‘work capability assessment’ rules now finalised; will apply at first only to ESA claimants, but will apply to all existing incapacity benefit and income support for incapacity for work claimants in coming years.
• Rules on ‘limited capability for work’ for ESA basically similar to those on incapacity for work for incapacity benefits (eg, on permitted work) but are some differences (eg, in details of periods f limited capability for work and linking rules).

Amounts

(see Schedule 3 http://www.opsi.gov.uk/si/si2008/uksi_20080794_en_17#sch3
And Schedule 4 http://www.opsi.gov.uk/si/si2008/uksi_20080794_en_18#sch4 )

• In the assessment phase (first 13 weeks) contributory ESA will be paid at a flat basic rate; income-related ESA will be calculated using an applicable amount and income rules, basically similar to income support but there will be no disability premium. Severely disabled people in the support group will automatically be entitled to the enhanced disability premium.
• After assessment phase, most entitled claimants also paid work-related activity component, worth £24 a week (eg, will get total of £84.50 from basic rate plus work-related activity component); the most severely disabled will be paid the support component, worth £29 a week, as part of applicable amount (eg, single claimant applicable amount will be £102.10 from basic rate, support component and enhanced disability premium). Both components paid at a flat rate per claimant: no couple rate.
• In addition some premiums familiar from income support are still payable with income related ESA. These are: pensioner premium, severe disability premium, enhanced disability premium, carer premium.
  

Work Capability Assessment

(see Schedule 2: http://www.opsi.gov.uk/si/si2008/uksi_20080794_en_15#sch2 )

• Applies test of ‘limited capability for work’, one of the basic rules of ESA entitlement.
• This will apply to ESA claimants only at first; but is due to apply to incapacity benefits claimants aged under 25 from 2009, and all incapacity benefits claimants from April 2010.
• There are far fewer exempt groups than for the Personal Capability Assessment, eg those entitled to high rate DLA care component not automatically exempt, nor are most severe conditions. Support group members not automatically exempt from the test.
• Similar structure to Personal Capability Assessment (activities, descriptors, points) but many of the tests have been changed.
• Points threshold for satisfying the Work Capability Assessment is 15 points; points from physical health and mental health parts of the test can be combined.

Work-focused Interviews

(see Part 8 Chapter 1: http://www.opsi.gov.uk/si/si2008/uksi_20080794_en_6#pt8-ch1 )

• Will apply to most ESA claimants aged under 60 who are not in the support group.
• Rules basically similar to those that apply in Pathways to Work, including talking about possible back-to-work activity. Must draw up an ‘action plan’; must turn up and take part unless has ‘good cause’ for not doing so; deferrals (rescheduling) are possible but waivers (cancellation) are not.
• No requirement actually to undertake ‘work-related activity’ at the moment.
• Penalty for failure to comply is 50% reduction in the work-related activity component (ie, reduction of £12 a week) for first 4 weeks of failure, and then 100% reduction of that component (ie, reduction of £24 a week) in each subsequent week.
• Appeal rules still not yet confirmed but likely to apply to decisions containing failure to comply without good cause findings.
  

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